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Nichols v. State

Court of Appeals of Arkansas, Division IV

June 17, 2015

KHIRY DAUSHON NICHOLS, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR-2013-1076-1. HONORABLE WILLIAM A. STOREY, JUDGE.

Wallace, Martin, Duke and Russell, PLLC, by: Valerie L. Goudie.

Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

DAVID M. GLOVER, Judge. ABRAMSON and BROWN, JJ., agree.

OPINION

DAVID M. GLOVER, Judge

This is the second time this case has been before us. Appellant Khiry Nichols's counsel originally filed a motion to withdraw as counsel and a no-merit appeal from the denial of Nichols's motion to transfer his case to juvenile court; our court denied counsel's motion and ordered rebriefing as a merit appeal. Nichols v. State, 2015 Ark.App. 12. Counsel has now filed a merit brief, arguing that the trial court erred by refusing to transfer Nichols's case to juvenile court. We affirm.

Nichols, who was born in December 1996, was charged by felony information with being an accomplice to aggravated robbery, a Class Y felony, and being an accomplice to first-degree battery, a Class B felony. These offenses were alleged to have occurred on June 18, 2013, when Nichols was sixteen years old. He filed a motion to transfer his case to juvenile court or, in the alternative, to extended juvenile jurisdiction.

At the hearing on Nichols's motion to transfer, Shelly Clingan, a licensed social worker employed at the Washington County Juvenile Detention Center, testified that

Page 432

Nichols had been referred for crisis intervention due to elevated screening scores regarding suicide, although he denied being suicidal; he was currently in therapy; he had never been disrespectful to her; he had significant family issues and trust issues, including the fact that he had no relationship with his father; and he had admitted to using marijuana regularly, as well as having experimented with prescription medications and alcohol. She testified Nichols also reported to her that he had been physically abused as a child. Clingan was concerned that Nichols was low functioning and had never had an educational evaluation to determine if he needed assistance. It was Clingan's opinion that he needed to continue with the juvenile-court program, although she acknowledged that Nichols's juvenile probation had been revoked previously because he had run away from home and had cut off his electronic-monitoring device when he ran away from home a second time.

Scott Tanner, the Juvenile Ombudsman of the Public Defender Commission, testified as to the number of dispositions available through the juvenile system and extended juvenile jurisdiction. He stated that there were a substantial number of Y felony adjudications under extended juvenile jurisdiction.

Detective Rick Frisby of the Springdale Police Department testified that on June 18, 2013, he investigated a robbery at Brookhaven Apartments in Springdale. When he arrived at the scene, he found a Chevy Impala with gloves, a bloody backpack, a large log, and a brick in the vehicle. One witness related that he had seen three or four African American males fighting with a Hispanic male. Two suspects were arrested that night, and they both implicated Nichols in the robbery. Nichols initially denied any involvement in the incident when questioned by Frisby, but he later admitted to kicking and punching the victim after the victim lost consciousness. However, Nichols, who was the only juvenile of the three suspects, told Frisby that the other suspects " started the whole thing" and that it was one of the other suspect's idea to rob the victim. Detective Frisby stated that Nichols smirked and laughed a little while he talked about the incident. Nichols denied that the brick found in the vehicle was used in the attack; he also wrote a letter of apology to the victim. Detective Frisby was unable to talk to the victim, a thirty-five-year-old man, at the time of the incident because he was airlifted for medical assistance due to being in a coma; the victim, who was struck in the face and upper body, remained in a coma from June to November. The victim was wheelchair bound when Detective Frisby spoke with him in January 2014, and he continued to suffer the effects of the injuries he had sustained in the incident.

It is within a prosecuting attorney's discretion to charge a juvenile in either the juvenile or criminal division of circuit court if a juvenile is at least sixteen years old when he allegedly engages in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2009). On motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred. Z.T. v. State, 2015 Ark.App. 282. The court shall order the case transferred ...


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